Here are some thoughts about yesterday's opinion in Arkansas Game and Fish Comm'n v. United States, No. 11-597 (Dec. 4, 2012), in which a unanimous Supreme Court held that government-induced flooding could be a taking, even if temporary.
Bad Puns and a "Flood" of Litigation
First, the temptation in flooding cases is to make bad puns (the same seems to hold true for beach cases ('shifting sands,' for example ... what is it about property cases that especially inspires these bad puns anyway?), and this one is no exception. Justice Ginsburg's opinion dismissed the trope that holding in favor of the property owner would result in more litigation or a resistance on the part of government to take flood control measures:
The sky did not fall after [United States v.] Causby[, 329 U.S. 256 (1946)], and today's modest decision augurs no deluge of takings liability.
Slip op. at 12. Well played, Justice Ginsburg, well played. In all seriousness, however, this point bears reapeating, because in just about every takings case, the Court has to deal with the claim that a ruling in favor of the property owner will bring down the house, because regulation could not continue if the public actually had to pay when it takes property.
The slippery slope argument, we note, is hardly novel or unique to flooding cases. Time and again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest. Causby, 328 U. S., at 275 (Black, J., dissenting); Loretto, 458 U. S., at 455 (Blackmun, J., dissenting). We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment’s instruction. While we recognize the importance of the public interests the Government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases.
Id. We made this same point in a recent brief we filed in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), the exactions case the Court is considering, in which we argue that fears that positive takings rulings would bring land use regulation to a halt are overblown, and even if true, "[f]idelity to the Constitution is more important than a local government's freedom to bargain." The same is probably more accurate for the Corps of Engineers, we suspect. Does anyone seriously believe that the Corps will shy away from taking flood control measures because the federal government might be liable for a taking somewhere down the road? Our experience tells us that the Corps isn't so craven, or driven by the fear of monetary liability when it evaluates these type of projects.
The Takings Clause and Good Intent
Second, the opinion starts off with the oft-quoted line from Armstrong v. United States, 364 U.S. 40, 49 (1960), that "[t]he Takings Clause is 'designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'" Slip op. at 6. This is a reminder that intent doesn't play a dispositive (or even a significant) role in the takings equation. The Court rejected the argument (pressed by Justice Sotomayor at oral argument) that because the damage to the Commission's trees was the result of a project designed to minimize the harm from flooding that was going to occur anyway, there's no taking when the Corps is simply deciding who has to take the hit.
We hear arguments like this a lot in takings cases, and the opinion leading off with the Armstrong principle is a strong reminder that the Takings Clause is primarily about distributive justice, not whether the government was acting appropriately. Compensation is owned even when the government's action is perfectly legitimate. Indeed, in Tucker Act cases in which the property owners are seeking compensation from the federal government in the Court of Federal Claims, the suit is not ripe until an owner has conceded the validity of the government action.
The opinion reminds us that there are few situations in which the Court will conclude there is a taking as a matter of law: the "permanent physical occupation" rule of Loretto and Kaiser Aetna, and the permanent deprivation of the owner's beneficial use of property under Lucas. Everything else is subject to the multi-factor Penn Central test. Our amicus brief argued that it wasn't the "permanent" part of physical occupation or diminution of use that was critical to the taking determination. but whether the government action was a "direct and substantial" interference with the owner's use of her property. The Court didn't buy that argument, but we do note that the opinion cited a somewhat obscure case which we argued illustrated that proposition, National Bd. of YMCA v. United States, 395 U. S. 85, 93 (1969). See slip op. at 14. Count us as happy with that modest victory. For the list of factors the Court thinks is essential in flood situations -- indeed, any physical occupation where the length of the occupation is claimed to be less-than-permanent -- see pages 14-15 of the opinion.
So what to make of this ruling? Following oral argument, we didn't think there was much danger the Court would conclude that the nonpermanence of a physical invasion would insulate the damage caused by a flood from takings analysis (remember, the federal government isn't liable in tort for flooding). So we predicted a win for the proprety owner with a narrowly-drawn opinion. This seems to be the trend trend in takings cases, and the Court is apparently not keen to take major steps in this area, only to buff up the edges of the rules. Despite the nearly universal dislike of the Penn Central test, it appears it is here to stay for now. As a colleague noted this morning, this decision reminded us a lot of the opinion in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005). Both were unanimous. Both counseled against reading too much into prior opinions. Both rejected per se rules -- Lingle rejecting a rule of liabliity, Arkansas Game rejecting a rule of no liabliity. Both opinions fell back to Penn Central's factors as the default takings test.
Thus, Arkansas Game is not an entirely satisfying ruling. As noted above, we'd have preferred the Court adopt a brighter-line rule that all physical invasions that directly and substantially interfere with an owner's use are takings, and that the degree of damage inflicted is a question of compensation, not liability. That way, the courts don't need to wade into (here's the inevitable bad pun surfacing) the "permanence" of the invasion, but can focus on the key question in takings cases -- the degree to which a particular owner is being forced to shoulder more than her proportionate share of the public burden. Moreover, the Penn Central test is notoriously amorphous, and as a consequence provides little guidance to either property owners or government regulators about whether particular actions will be deemed to be takings, which only encourages aggressive regulation, reined in only by the possibility of a future compensation judgment. Which is to say not reined in very much.
Those points aside, we can safely say that a goodly portion of government-induced floods that result in litigation should meet the special application of Penn Central articulated in Arkansas Game, and this decision won't materially alter the present landscape. At least the decision has removed an argument that we've always believed bordered on spurious, and property owners will not have to contend with it from here forward.
On the whole, count us pleased.
Finally, this opinion took us back to the first year of law school, where we had one professor who was obsessed -- and we mean seriously obsessed -- with the difference between a court's "holding" and everything else in an opinion. So he'd call on some hapless student and ask "what's the holding?" of whatever case we were discussing that day. When the student invariably answered "...the court said...," the prof would cut him off with "court's don't 'say' things, they don't 'write' things, they HOLD things!" Eventually, we got the message, and learned to differentiate between those facts which were essential to the rule of the case, those which were not and could be discounted as dicta, and to understand what words in an opinion could be discounted entirely when trying to deduce the rule of law.
If you want a similar lesson from the Supreme Court, look no further than pages 9 through 12 of the slip opinion, where the Court rejected the government's argument that Sanguinetti v. United States, 264 U.S. 146 (1924), compelled the Federal Circuit's per se rule of no liability unless the flooding is "permanent." Don't read too much unto the word "permanent" in Sanguinetti the opinion cautioned, because the sentence in which it appears was meant to "summarize the flooding cases the Court had encountered up to that point, which had unexceptionally involved permanent, rather than temporary, government-induced flooding." Slip op. at 10. In other words it was dicta, as our lawprof would say.
But as just explained, no distinction between permanent and temporary flooding was material to the result in Sanguinetti. We resist reading a single sentence unnecessary to the decision as having done so much work. In this regard, we recall Chief Justice Marshall’s sage observation that "general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision." Cohens v. Virginia, 6 Wheat. 264, 399 (1821).
Slip op. at 11.
A good reminder about the basics, and a most enjoyable part of the opinion to read.